We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT NOMINEE NOT SO BAD FOR FEDERAL PRISONERS

Most of the press last week about Supreme Court candidate Brett Kavanaugh, nominated last Monday by President Trump, suggested he will try to reverse Roe v. Wade his first day on the job. But for those readers not as concerned about abortion rights as they are getting out, how about the Judge’s record on criminal justice?

The best news is that Judge Kavanaugh, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, thinks that

“allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”

Judge Kavanaugh also believes that people should be convicted of many crimes only on a heightened showing of mens rea, knowledge that the act was a crime or intent to break the law. In a case where a drug defendant was convicted of an 18 USC 1001 false statement to government officials because he signed a phony name on a U.S. mail receipt, the Judge said, “Proper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions under § 1001 and other regulatory statutes. In § 1001 cases, that means proof that the defendant knew that making the false statement would be a crime. To be sure, “ignorance of law is no defense” is a hoary maxim. But it does not automatically apply to today’s phalanx of federal regulatory crimes…”


In a restitution case, a defendant stole almost 20,000 pieces of computer equipment. Judge Kavanaugh reversed the restitution payment, which included the cost of the victim company’s internal investigation. He said, “The statute authorizes restitution for “necessary… expenses incurred during participation in the investigation or prosecution of the offense.” We do not read that text to authorize restitution for the costs of an organization’s internal investigation, at least when (as here) the internal investigation was neither required nor requested by the criminal investigators or prosecutors…”

Judge Kavanaugh is more in line with Chief Justice Roberts than any hard-liner. He won’t be a Justice Scalia or Alito. But he’ll probably be more sympathetic to criminal justice issues than Kennedy was.

Southern District of Florida Blog, A look into some of Judge Kavanaugh’s criminal justice opinions (July 10, 2018)

– Thomas L. Root